Voting Rights: This Is What a Strong Party Platform Would Look Like

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In tone and tenor, the Democratic and Republican voting-rights planks could not be more different. But there's clearly room for a third way.

Building the stage for the Democratic National Convention in 2004. (Reuters)

The most elemental civil right, the one from which all other rights ultimately flow, is the right to vote. Can we all at least agree on that?

This election year, to a degree unimaginable even in the wake of the Florida recount and Bush v. Gore, the issue of voting rights and election procedures is a key part of the political debate leading up to the first Tuesday in November. It's as if some great lock has been turned, some vast door has been opened, and all the primal grievances from those furious days in November and December 2000 have come pouring out again. Add to the mix strident white fear about America's changing demographics over the interceding decade, and you have a combustible brew indeed.

This year on the battle lines, from Ohio to Florida to Pennsylvania to Texas to South Carolina and beyond, we've heard from lawyers and politicians, from judges and election officials, from bureaucrats and weasels and cranks. The Republicans say voter fraud must be stopped and that stringent registration laws are the way to stop it. The Democrats say that there is no such voter fraud and, even if there were, Republican laws to stop it are discriminatory. So far, the courts have agreed with the Democrats. So far, the U.S. Supreme Court has stayed out of the fight. So far.

Nowhere is the gulf between the two parties more stark on voting rights than it is in the language of their respective national platforms. Read the two planks (below) one after the other, and it's like you are reading about two different Americas. I suppose it's like that everywhere this election season, with each party's fiercest partisans describing an America unrecognizable to the fiercest partisans on the other side of the fight. Below are the two planks. Which America belongs to you? More important, perhaps, to which America do you belong?

Here is the language of the Republican Party, taken directly from its platform endorsed last month:

Voter Integrity to Ensure Honest Elections

Honest elections are the foundation of representative government. We support State efforts to ensure ballot access for the elderly, the handicapped, military personnel, and all authorized voters. For the same reason, we applaud legislation to require photo identification for voting and to prevent election fraud, particularly with regard to registration and absentee ballots. We support State laws that require proof of citizenship at the time of voter registration to protect our electoral system against a significant and growing form of voter fraud. Every time that a fraudulent vote is cast, it effectively cancels out a vote of a legitimate voter.

Voter fraud is political poison. It strikes at the heart of representative government. We call on every citizen, elected official, and member of the judiciary to preserve the integrity of the vote. We call for vigorous prosecution of voter fraud at the State and federal level. To do less disenfranchises present and future generations. We recognize that having a physical verification of the vote is the best way to ensure a fair election. "Let ambition counter ambition," as James Madison said. When all parties have representatives observing the counting of ballots in a transparent process, integrity is assured. We strongly support the policy that all electronic voting systems have a voter verified paper audit trail.

States or political subdivisions that use all-mail elections cannot ensure the integrity of the ballot. When ballots are mailed to every registered voter, ballots can be stolen or fraudulently voted by unauthorized individuals because the system does not have a way to verify the identity of the voter. We call for States and political subdivisions to adopt voting systems that can verify the identity of the voter.

Military men and women must not be disenfranchised from the very freedom they defend. We affirm that our troops, wherever stationed, be allowed to vote and those votes be counted in the November election and in all elections. To that end, the entire chain of command, from President and the Secretary of Defense, to base and unit commanders - must ensure the timely receipt and return of all ballots and the utilization of electronic delivery of ballots where allowed by State law.

We support changing the way that the decennial census is conducted, so that citizens are distinguished from lawfully present aliens and illegal aliens. In order to preserve the principle of one-person, one-vote, the apportionment of representatives among the States should be according to the number of citizens.

And here is the language of the Democratic Party, taken directly from its platform endorsed over the past few days:

Voting Rights. We believe the right to vote and to have your vote counted is an essential American freedom, and we oppose laws that place unnecessary restrictions on those seeking to exercise that freedom. Democrats have a proud history of standing up for the right to vote. During the Obama administration, the Justice Department has initiated careful, thorough, and independent reviews of proposed voting changes, and it has prevented states from implementing voter identification laws that would be harmful to minority voters. Democrats know that voter identification laws can disproportionately burden young voters, people of color, low-income families, people with disabilities, and the elderly, and we refuse to allow the use of political pretexts to disenfranchise American citizens.

If you read the first plank alone, you would be forgiven for thinking that America's recent elections have been fatally "poisoned" by voter fraud, that voting fraud by illegal immigrants is "a significant and growing" problem, and that many "legitimate" voters, especially the elderly, the handicapped, and military personnel, are routinely being disenfranchised. It's powerful writing for the assumptions it makes, and likely effective, too, even though there is no evidence that any of that is true (if it is, it sure hasn't come out as evidence in court in any of the recent voting rights cases).

If you read the second plank alone, on the other hand, you would be forgiven for thinking that America's elections are generally fair and accurate affairs, and that restrictions on voting, if necessary, should be accompanied by a great deal more restraint and consideration for the rights of minorities and the dispossessed. This version omits mention of the various faults in our voting systems and offers no suggestions about how to make elections more efficient and accurate in the future. The Republicans want to change the status quo. The Democrats want to do so -- only much more slowly.

I tried once to write legislation, but it didn't go so well. I have never had to write a draft court order of any length or substance. No one is likely to ever ask me for my opinion in drafting political platforms. And party planks these days seem like the ideologue's equivalent of the pork barrel. (The Democrats included in their own this year the provision that they want to close the terror law prison at Guantanamo Bay, Cuba. Good one, Democrats! That flotilla sailed three years ago.) But if I were to take a crack at a voting rights plank, it would read something like this:

On Voting Rights

In a free society, the right to vote is the most sacred and important right, and the right to vote in America must be zealously guarded. This means that every American who has a right to vote should not be unreasonably impeded in doing so. It also means that states should make reasonable efforts to ensure voting accuracy at all levels of the process. All such efforts, however, must begin with the proposition that it is the aim of government to aid rather than prevent people from exercising their right to vote.

Laws which require registered voters with low income to pay to re-register to vote, or which require infirm or immobile citizens to travel great distances to re-register to vote, constitute an unnecessary and avoidable burden upon this fundamental right. The vast majority of registered voters who go to the polls do so lawfully, honestly, and accurately. No state or federal law should unreasonably burden these people in the name of stopping voter fraud but in the absence of clear and convincing proof of such fraud.

Voter fraud shall not be established by rumor or innuendo, by inference or folklore, or by anecdote or presumption. It must be proven in a court of law and, to that end, we urge states to allocate substantial financial and human resources to investigate and, if necessary, to prosecute allegations of voter fraud. No state which cannot establish in law or fact the presence of such voter fraud to a meaningful degree should be permitted to pass restrictive voting measures that would have the effect of burdening registered voters in the exercise of their fundamental right.

Ensuring fair elections and unbiased voting laws must be a nonpartisan task. Both the Federal Election Commission and the Justice Department are by their nature reactive entities. We therefore urge a proactive approach to the problem -- the formation of a national commission on voting and elections, initiated by the President of the United States, funded by Congress, and made up of judges, scholars, and others. We propose naming former Supreme Court Justice Sandra Day O'Connor to head this commission. And we propose authorizing her and the commission to establish model state election rules and voter-registration rules, which will help ensure that our elections are more accurate without making them more unfair.

Would you endorse a plank like that? Let me know.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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